SC contempt verdict fundamental assault on independence of Bar, Bhushan tells BCD; urges it to drop matter

"I submit that the Bar Council should stand in solidarity with the rights of the members of the legal profession, and not take cognizance of the judgment of Supreme Court which have severely constricted and abridged the freedom, rights and dignity of the members of the Bar and also ordinary citizens," said advocate Prashant Bhushan in reply to the letter sent by Bar Council of Delhi seeking his response as to why proceedings should not be initiated against him in view of the conviction in suo motu contempt case against him.

He submitted that his two tweets that led to the conviction judgment last month, are "within the limits of freedom of expression" of a member of the Bar and "there is nothing in them which could be termed as contemptuous", legal news website LiveLaw.in has reported.

"The Supreme Court judgments holding me guilty of criminal contempt and further sentencing me for the same are a fundamental assault on the freedom of speech and independence of the Bar," he said.

Taking cognisance of the two controversial tweets by Bhushan and the Supreme Court's consequential verdict holding him guilty of criminal contempt, the Bar Council of Delhi had required the counsel to appear before itself to show cause as to why action under section 24A and section 35 of the Advocates' Act not be proceeded with against him.

Responding to the letter, Bhushan said, "My conviction for committing criminal contempt was not a conviction for "an offence involving moral turpitude", as is the requirement under Section 24A of the Advocates Act."

With reference to 'professional misconduct' under Section 35 of the Advocates Act, he said, "The test for professional misconduct as reiterated in P.D. Khandekar is whether the actions of the concerned advocate bring disrepute or dishonor to the legal profession and are perceived as such by his brothers and sisters at the Bar. In the present case, far from the Bar disapproving my tweets, I have received a groundswell of support and solidarity for my two tweets from fellow lawyers as well as from retired Judges of Supreme Court and High Courts."

Bhushan has pointed out that the Bar Council is not at all bound by the judgment of the court holding him guilty, and it is for the Council itself to apply its own independent mind and come to a conclusion whether indeed he has committed an act which is worthy of suspension of right to practice law.

"Thus, merely because my tweets have been held to be contemptuous by the Supreme Court in Suo Motu Contempt Petition No. 1/2020, it would not necessarily follow that the same also constitute ‘professional or other misconduct’. The law on this point was settled by the Hon'ble Supreme Court in the landmark judgment of Supreme Court Bar Assn. v. Union of India ((1998) 4 SCC 409)," Bhushan said.

He added, "the judgments against me are tainted with breach of principles of natural justice and rule against bias. It is for this reason also that the said judgments ought to be disregarded by the BCD."

Bhushan has further claimed that the Bar Council of India Rules itself discourage an advocate to be servile to the court and it rather casts a "duty" upon him to raise his voice against "improper conduct by any judicial officer".

In my tweet, Bhushan said, I had tried to raise my voice against the closure of the courts from any sort of normal functioning, which has had a devastating impact on the people's right to access to justice and has also affected the legal community hugely.

He added, "This judgment would have the effect of criminalizing any criticism of the functioning of the judiciary and would have a chilling effect on the right of lawyers and citizens to voice their opinion."

In this regard, he has also drawn the Council's attention to the submissions made by Senior Advocate Dr. Rajeev Dhavan before the Supreme Court during his hearing on sentencing.

He has urged the BCD to take a firm stand in support of the freedom of speech and expression of the Bar as the very freedom, dignity, rights and independence of the Bar are at stake.

Nevertheless, he has requested that in case the Council decides not to drop the proceedings against him, then the same be put on hold till his review petition against the contempt verdict and the writ petition seeking directions for an intra-court appeal in cases of original criminal conviction by the Supreme Court, are decided